A Free Church perspective on the Referendum

Free Church perspective on the Referendum – What they don’t tell you in the news

(The following article was written in the week of the Referendum on Scottish Independence, which took place on 18th September 2014)

Ask a historian and they will tell you that it is not possible to understand Scottish history properly without an understanding of Christianity and the Scottish church. Similarly it is not appropriate to envisage a future for Scotland that does not give a place of pre-eminence to true Christianity. As you are called upon this week to decide Scotland’s future in a referendum, please do so with an awareness of the obligations that Scotland owes, as a nation, to the one true and living God.

I want to take this opportunity to highlight some facts about the Scottish nation and the UK constitution that every Christian in Scotland ought to have some awareness of – especially those who adhere to the Free Church. I believe that these facts are of fundamental importance in this referendum debate and yet you will not hear them on the news or in the public discussions. Why? It seems that just like the people of Israel long ago, the people of Scotland and the UK have been quick to forget our God. We have suppressed from our collective memory the pledges previously made in the sight of God, and the blessings he has brought to us as a result.

1. Scotland and England are bound together by an international treaty

Let me begin with an observation from eminent legal expert, Prof David Walker, in an article written in 2007 to mark the 300th anniversary of the Union of Scotland and England:

The true legal nature of the Union of 1706-07 has not been properly understood, particularly in England, and there have been consequential mistakes in talking and writing about it, evidenced particularly by the way in which Scottish historians normally refer to the Treaty of Union, and English historians, and most politicians and members of the general public, normally speak of the Act or Acts of Union…That it was a treaty in international law is amply evidenced…The agreement conformed to all requisites for a treaty in international law.(1)

In the same article Prof Walker also went on to state:

There appears to be neither authority nor precedent for Parliament interfering with an international treaty, particularly where under the treaty the consenting states had ceased to be independent states and had merged their personalities in a new state by an incorporating union.(1)

The significance of this detail is that, contrary to what we are told by both the Scottish Government and the UK Government, the people of Scotland do not have an inherent right to choose independence. The sovereignty of the Scottish people is limited. We are bound to the people of England under the terms of a permanent international treaty. The only justification for Scotland to seek and declare independence is if it is able and willing to show that the Treaty has been fundamentally breached to Scotland’s detriment.

2. The fundamental terms of the Treaty of Union were first violated in 1712.

At the union of Scotland and England it was stipulated that the Presbyterian church with all its rights and freedoms should “continue without any alteration to the people of this land in all succeeding generations”. Both parliaments agreed and enacted this to be a “fundamental and essential condition of the Union without any alteration thereof, or derogation thereunto, in any sort, for ever”. It was also agreed and declared that the monarch, at accession to the throne, would “swear and subscribe” inviolably to maintain it. This is the only fundamental and essential condition of the Union stipulated by Scotland.

In 1712, just five years after the Union, the British parliament violated the Treaty by passing the Patronage Act. This Act removed the rights of congregations to elect their own minister and gave the right of nomination to land owners (patrons). This was a deliberate restriction of the rights and liberties of the Scottish church and it was a direct violation of the fundamental terms of the Treaty of Union. Every year thereafter, for almost 80 years, the Church of Scotland sent a protest to the UK Parliament, but to no avail.

3. The Church of Scotland separated itself from the British state because of fundamental breaches of the Treaty of Union.

The effect of the Patronage Act of 1712 was to plunge the Scottish church into a period stagnation. Ministers were being chosen by the patrons, not for their spiritual qualifications, but for political and social reasons. By the 1830’s, however, the evangelicals in the church had regained a majority and sought to restore the constitutional rights of congregations to elect their own minister. This was fiercely resisted by patrons and by “moderate” ministers. The result was that the Court of Session sought to enforce upon the Church and people of Scotland an even more rigid adherence to Patronage. In 1842 the General Assembly of Church of Scotland appealed to the UK Parliament for redress against this unconstitutional assault against its rights. The Claim, Declaration and Protest sent to Parliament began by making reference to the Treaty of Union,

“the securities for the Government [of this Church]…and for the liberties, government, jurisdiction, discipline, rights, and privileges of the same, provided by the statutes of the realm, by the constitution of this country, as unalterably settled by the Treaty of Union, and by the oath “inviolably to maintain and preserve” required to be taken by each Sovereign at accession…”(2)

The Claim, Declaration & Protest clearly stated that if there was no redress the Church of Scotland would consider itself “compelled to yield up” its rights as an established church. This it would do,

“in order to preserve to their office-bearers the free exercise of their spiritual government and discipline, and to their people the liberties, of which respectively it has been attempted, so contrary to law and justice, to deprive them.”(2)

The UK Parliament refused to even consider the Claim, Declaration and Protest of the General Assembly. The result was the Disruption of 1843. The Church of Scotland withdrew from the Establishment to continue as the Church of Scotland (Free), soon to be referred to as the Free Church of Scotland. This stand was supported by a majority of office-bearers of the church and by the majority of its members. In Sutherland and other parts of the Highlands, the adherence of the people to the Free Church was almost unanimous. Please don’t mistake what took place at the Disruption. The Free Church did not leave the Church of Scotland. Rather the Free Church is the true Church of Scotland which was compelled to leave off its connection with the British state in order to remain free. Those who chose to keep up a connection with the state and kept the name “Church of Scotland” did so in direct opposition to the Act of the previous General Assembly, in contravention of the Treaty of Union, and, indeed, in disobedience to the Scripture which declares Christ alone to be Head of the Church.

4. The UK Government considers itself at liberty to continue to violate the Treaty of Union.

The UK Governments have remained unrepentant regarding the violations of the Treaty. Indeed the current political doctrine in Westminster is that Parliament is absolutely sovereign and has no restrictions to its power.(3) It is officially asserted that Parliament can do whatever it pleases. This is, however, a view that does not accord with Scots law or the terms of the Treaty of Union. Often quoted in this regard is the opinion of Lord Cooper:

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law . . . I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that Parliament should be free to alter the Treaty at will.(4)

It is unfortunate that the current UK Government, as well as the other UK parties, have no desire to address this constitutional problem. It makes it difficult for a Christian to confidently vote to remain within the UK at this time. The Treaty requires that true Christianity be maintained and protected within our land, but for over 300 years it has been rather interfered with and suppressed. The Treaty requires that the terms of the church establishment be such that the Free Church may once again take its place as part of a national church, but we rather find the claims of the Free Church to be so far off the political agenda that the very idea of its reinstatement as the national Church would be mocked as absurd. If we remain within the United Kingdom, however, it must be with an earnest desire to reclaim these spiritual rights as opportunity presents itself. The Disruption fathers said,

“firmly asserting the right and duty of the civil magistrate to maintain and support an establishment of religion in accordance with God’s word, and reserving to ourselves and our successors to strive by all lawful means, as opportunity shall in God’s good providence be offered, to secure the performance of this duty agreeably to the Scriptures, and in implement of the statutes of the kingdom of Scotland, and the obligations of the Treaty of Union as understood by us and our ancestors…” (5)

We are the successors of these men. Should it be that Scotland remains within the UK after this referendum then it falls to us and future generations to keep up these claims.

5. The Scottish Government has no desire to restore to the people of Scotland their ancient rights and liberties.

It might be expected that the Scottish Government and the Yes Scotland campaign would be quick to cite fundamental breaches of the Treaty of Union. This would surely give justification to the call for independence. Strangely, however, they make no mention of the Treaty in their publications or debates. The problem for them is that if they were to cite the breaches of the Treaty of Union then it would leave them with an obligation to rectify these in the new Scotland. Far from wishing to recover the ancient constitution and restore Christianity, the Scottish Government has indicated that it wishes to overturn it altogether and start afresh. The Government’s Guide to an Independent Scotland sets out a proposal to create a new written constitution after independence. The constitution will “set out the aspirations we have for our country and our vision for the future” and this will be done through “an open, participative and inclusive constitutional convention”.(6) One of the Scottish Government’s own aspirations is “to remove religious discrimination from the succession rules”(7). This may sound fair and up-to-date but the clear message is that the Scottish Government has no intention that Christianity be given priority in the new Scotland.

It should be remembered that, in this referendum, you are not necessarily being asked if you agree with the Scottish Governments proposals. You are merely being asked “Should Scotland be an independent country?” No reasons are stated on the ballot so you need to examine your own motives. The only legitimate reason to seek independence is because the Treaty has been violated and you believe independence will give a better opportunity for redress.

6. The Economy, Democracy, Healthcare and Oil ought to have nothing at all to do with this referendum

It is extremely disappointing that the referendum debate has focussed around so many issues that are either secondary or speculative. After months of campaigning the people of Scotland are really no wiser as to the principles that underlie the momentous decision they are called to make. In his 2008 book about the Disruption, Supreme Court judge, Lord Roger of Earlsferry observed that media coverage in our present day is “superficial”. He states,

“By contrast, in the nineteenth century full reports of the judgements in four of the Disruption cases were published and there were 782 ‘distinct pamphlets on this one subject printed during these years, circulated by thousands, and falling like snowflakes all over the land.’ Clearly, at that time, a significant number of people throughout Scotland – a lot of them, presumably, ministers – were prepared to devote both time and money to following the serious and complex issues in detail.”(8)

There are some complex principles at stake in this referendum debate and they have been left entirely undiscussed by the media and the respective referendum campaigns. The various Presbyterian churches of Scotland have sought to address the key issues. The Free Presbyterians, the Free Church (Continuing), the Reformed Presbyterians and others have issued discussion papers that highlight many legitimate spiritual concerns. They make useful reading but few have known about them, few have cared and even fewer have read them.

What is absolutely certain is that issues such as the economy, democracy, healthcare and North Sea oil etc, have nothing whatever to do with the essential principles of Scottish nationhood. Don’t let these be the key issues that make up your mind. If you intend to vote Yes because you think it will bring a more wealthy and democratic Scotland, then you are voting for the wrong reasons. If you intend to vote No because you think you will be more stable and secure remaining within the United Kingdom, then you are also voting for the wrong reasons.

Conclusion

The bible says:

“He has made from one blood every nation of men to dwell on all the face of the earth, and has determined their preappointed time and the boundaries of their dwellings, so that they should seek the Lord, in the hope that they might grope for Him and find Him, though He is not far from each one of us’ (Acts 17:26-27)

Scotland is a distinct nation in the plan of God. This is true whether we remain a part of the United Kingdom or not. God knows the outcome of Thursday’s referendum and has already pre-appointed what will be. But as you go to the ballot you must not do so in order to satisfy mere earthly desires or prejudices but rather seeking the Lord in the hope that we may find him.

We must thank God for our nation and for the land in which he has placed us. It is beautiful and diverse, sometimes rugged and inhospitable, but he has provided us with all things necessary for life and godliness. We thank God especially that here he has caused the gospel to take root and flourish. We have had ancestors who earnestly sought the Lord and found him. From here, in long centuries past, in the days of Columba and others, the word of God went out into England and Europe to kindle again the gospel there. From here in the eighteenth and nineteenth centuries the word of God went all over world. If Scotland has excelled itself at any time and been a blessing to other nations of the world then it has been when we have known and cherished and exported the gospel. To this day many nations and churches look to Scotland as the source of their gospel privileges. They lament, and we ought also to lament, that in this land the desire to “seek the Lord” has faded. We need to lament and we need to repent, but we also need to resolve individually and together that we will prioritise the claims of Christ in our public life. The great need of our nation is not independence or union, but rather that we would seek the Lord.

Notes:

1. David M Walker, Regius Professor of Law at Glasgow University 1958-1990, The Union and the Law, Journal of Law Society of Scotland, 18th June 2007

2. General Assembly of the Church of Scotland, ACT XIX, 1842: Claim, Declaration and Protest, anent the encroachments of the Court of Session

3. “The theory of ‘continuing’ sovereignty, as explained by Professor Dicey, is that there are no limits to the legislative competence of Parliament. Each Parliament is absolutely sovereign in its own time and may legislate as it wishes on any topic and for any place. That which has been enacted by Parliament has supreme force and cannot be invalidated or changed by any other domestic or external authority. As so outlined, the doctrine has been the very foundation of the British constitution since at least the latter days of the nineteenth century.” Alex Carroll, Constitutional and Administrative Law, chapter 5, p95

4. MacCormick v Lord Advocate 1953 SC 396, 1953 SLT 255. This was a legal action on whether Queen Elizabeth II was entitled to use the numeral “II” in her title in use in Scotland, there having never been an earlier Elizabeth reigning in Scotland

5. General Assembly of Church of Scotland (Free), Act 1, 1843: Protest by those commissioners to the General Assembly appointed to meet on 18th May 1843, by whom this Assembly was constituted.